Martin Ratemo Nixon v Jumbo North East Africa Mills Limited [2019] KEELRC 2606 (KLR)
The bottom line
#A Kenyan employer cannot fire a worker for desertion without first trying to reach them for an explanation, even after alleged theft.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination for desertion
The termination was procedurally unfair because the respondent produced no evidence of attempts to contact the claimant to show cause before terminating his services for desertion.
The court accepted that the claimant may have attempted to smuggle extra steel and fled, but held that even so, the employer was bound to make attempts to contact the employee to explain why his services should not be terminated on account of unauthorized absence. The respondent's witness confirmed no show cause letter was issued, the explanation being that the claimant had deserted. This failure rendered the termination procedurally unfair notwithstanding the seriousness of the alleged misconduct.
Claims for overtime, annual dues and house allowance
These claims failed as the respondent rebutted them and the claimant admitted signing annually for all dues including overtime and allowances.
The respondent's evidence was that weekly payments included overtime and that leave dues were paid each year, with the claimant signing annually acknowledging settlement of dues. In cross-examination the claimant admitted signing vouchers and declarations of settlement and that the respondent used to remit NSSF dues. On this evidence the court found the claims for overtime and annual dues successfully rebutted and declined to award them.
Legal principles established
#- A termination of employment on account of desertion is only justifiable where the employer demonstrates attempts to contact the employee to show cause why employment should not be terminated for unauthorized absence.
Court orders
#- 1.Award of Kshs. 12,000 being one month's salary in lieu of notice
- 2.Award of Kshs. 72,000 being six months' salary as compensation for unfair termination
- 3.Costs of the suit awarded to the claimant
- 4.Interest on the award at court rates, subject to taxes where applicable
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim for unfair termination and terminal benefits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Ratemo Nixon v Jumbo North East Africa Mills Limited [2019] KEELRC 2606 (KLR)", Case Analysis (2019). Cause No 41 of 2017 (Formerly Nakuru Cause No 243 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2606/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.